KUNHIVALAPPIL KUNHIKANNAN Vs. KIZHAKKEVEETTIL MANOHARAN

JUDGEMENT

(1.) DEFENDANT in O.S.No.109 of 1994 of the Munsiff's Court, Payyannur is aggrieved by Ext.P10, order dismissing Ext.P8, application to appoint an Advocate Commissioner to identify property of petitioner/defendant as well.

(2.) RESPONDENT /plaintiff filed the suit for prohibitory injunction. He has paid court fee under Sec.27(a) of the Kerala Court Fees and Suit Valuation Act (for short, "the Act"). Petitioner contended that a portion of his property is included in the plaint schedule. Learned Munsiff framed issue regarding title claimed by the respondent/plaintiff. The suit was dismissed in favour of petitioner. Ultimately, in Ext.P2, judgment in S.A.No.741 of 2000, this Court observed that property claimed by the respondent is not properly identified and that there is nothing to show that properties of the petitioner and respondent are measured in terms of their title deeds and properly identified. The second appeal was allowed and the case was remanded for fresh decision in the light of the said observations. After remittance, the Advocate Commissioner submitted Exts.P3 and P3(a), report and plan. Petitioner claimed that his property is not identified though he had preferred Ext.P5, memo to the Advocate Commissioner for such purpose. That was followed by petitioner filing Ext.P4, application for remittance of Exts.P3 and P3(a). That application was dismissed by Ext.P1, order. The said order, petitioner challenged in O.P(C).No.33 of 2012. This Court disposed of the original petition as per Ext.P7, judgment with certain observations.

(3.) LEARNED counsel for petitioner contends that since an issue regarding title claimed by respondent is raised and court fee is paid under Sec.27(a) of the Act, the trial court has to conduct an enquiry regarding title and more particularly, in view of direction in paragraphs 21 and 22 in Ext.P2, judgment dated 15.06.2011 in S.A.No.741 of 2000. Learned counsel submits that it is without identifying property of petitioner that the Advocate Commissioner has submitted Exts.P3 and P3(a), report and plan and hence for a proper adjudication of the dispute involved, it is necessary to identify property of petitioner as well. In the circumstance, Ext.P10, order cannot be justified, it is argued.